Goods not as described

[Bananass]

Re: Goods not as described

Excellent, thank you very much. I have to submit the questionnaire very shortly - should I indicate that I have a witness, in case I can get her to attend, or would I be penalised for so doing when I don't know if I can even contact her ? (Or would all that be covered by raising it later as you suggest).

Also I now know that the defendant has ticked the box for written evidence of an expert (automotive engineer). I am planning to do the same - given that expert witnesses are supposed to be impartial could we share the same witness and if so how do I go about arranging it ? Do I tick the box and then contact the defendant directly ?

[Bananass]

Re: Goods not as described

Just trying to think this through - if I do make contact (the defendant is now refusing contact details because the witness is "not relevant") - if she doesn't want to go through the stress of a hearing would a written statement from her carry weight ?

Thanks.

[R0b]

Re: Goods not as described

You could indicate a witness yes, but again you will need those details. What you could try and do (it may or may not work) is staple a short letter with the directions questionnaire adding that the witness you are seeking to rely upon, the defendant is refusing details without a reasonable response (also unreasonable conduct if they refuse to provide any documents). attach and include a draft directions order which would include an order to provide details of this third party and/or disclosure of documents you seek from them.

Failing that you made need to make an application for disclosure.

If the witness does not turn up then they can provide a written statement but will be admitted as hearsay, as the witness should be able to be cross-examined and therefore attend. The judge will take into account certain factors when determining how much weight to add to the written statement.

Edit: as for your expert, tick yes and put in the comments to be agreed with the defendant, in the event that this cannot be agreed 7 days before hearing, the court shall appoint one - something to that effect and then yes contact the defendant, just make sure the expert they wish to use is independent and has no ties with the dealer and you will want assurances from them to confirm that in writing.

[Bananass]

Re: Goods not as described

Thanks - it really is a great help to get this guidance. I now have to bite the bullet and get this questionnaire off. (I'll probably be back though !)

[Bananass]

Re: Goods not as described

Do you know of a website giving examples of draft directions orders suitable for my situation please ? All I have come up with is where a bank is the claimant and the defendant is sending the draft.

Also do I have to send copies to the defendant first ? I am thinking of Practice Direction 28, 3.4 which I believe relates to the fast track but wondering if it would apply to small claims as well ?

Thanks again

[R0b]

Re: Goods not as described

draft directions order will be similar layout to a consent order something like


DRAFT DIRECTIONS ORDER

Upon considering ....

IT IS ORDERED THAT:

1. The claim be allocated to the Small Claims Track.

2. The Defendant shall within 14 days:

(a) disclose copies of all ...

(b) provide the Claimant with sufficient details of the employee of the Defendant at the time, whom was a party to the sale.

3. Unless the Defendant fails to comply with paragraph 2 above, the defence shall be struck out and the Claimant shall be permitted/granted summary judgment


It's a bit rough but you set it out like that and what you would like to be included in the draft order - of course the judge doesn't have to listen but as long as you put a good point across he may well do so. If you attach a letter, date it and staple to the directions questionnaire and within that mention to further the overriding objective and keep costs to a minimum for both parties ... you enclose a draft order for directions.

[Bananass]

Re: Goods not as described

Thanks again. Finally got that off, arrived Wednesday. Today (Thurs) the defendant has responded with their own letter to the court "answering" all my points in the draft directions order. Should I respond to this ? I am guessing the court will not want a tit for tat dialogue.

Their response - data protection again (when I told them before that it didn't apply they refused instead on grounds that the witness wasn't relevant but they haven't said that to the court).

I requested 3 documents :
1 - Invoice from their supplier for the goods - "not relevant"
2 - Vehicle inspection report arising from my original complaint - "not available as computer system has changed"
3 - Transcript recording of telephone conversation when contract was made - "do not have a recording of a call from nearly three years ago".
On 1 probably not much I can add from my covering letter.
2 and 3 is there an obligation to retain records where there is an ongoing complaint ?

[R0b]

Re: Goods not as described

It doesn't matter what they think is relevant or irrelevant, that fact is that you do and it is up to the judge to decide. If you request documents relating to the claim then they should hand it over, they shouldn't be picking and choosing what they want to hand over to you.

Depending on the orders of the court you could make a specific disclosure application at a cost of £155 for the specific information that you require and seek to get your costs of the application back based on the conduct of the other side.

As for the telephone call, it probably is unlikely they retain a call for 3 years most big companies generally retain call recordings for 6 -12 months, and even then they say calls maybe recorded.

It is surprising and perhaps coincidental that they appear to have changed their system and not completed a backup of any information on the previous system - put them on the spot and ask them that are they trying to say that all documents and information is lost earlier than 3 years because of a system change and of course that would be quite serious if they have to retain certain information. They should also ideally have an archived copy of the invoice? Can you or they retrieve a copy of the inspection report from the person who did it or was it the same company?

[Bananass]

Re: Goods not as described

This is odd - I'm sure I posted a reply a few days ago. Anyway gist was I agree on phonecall except I began my complaint within 12 months of it so if there was one it may have been in existence at that time. The fact that they have ignored all questions on it up to now meant I just had to work on the assumption that there had been one.

It was the company that produced the inspection report.

I have put them on the spot over that and their response has been - wait for it - to make an offer to settle. I will reject it although it is probably quite well pitched ie low if I were to win every aspect of my claim but close if I were only to win part.

My big question is - it includes a 'gagging order' which I would want to reject whatever the amount offered but how would this be viewed by the court ?
ie let's say I am offered £700 with a gagging order and I reject it because of the gagging order then the court awards £600 will the court say I have wasted it's time because I earlier rejected £700 or will the court take into account the conditions placed on the offer, rendering it unacceptable to me ?

[Bananass]

Re: Goods not as described

By 'gagging order' I mean a confidentiality agreement between the parties and not a court order !

[Bananass]

Re: Goods not as described

Hello, Want to give a detailed reply to the defendant which would include a statement that I will not accept any offer which has a confidentiality clause attached but I have been unable to find out how that may be viewed by the court.

I believe there are matters of public interest here - how the organisations set up to protect the consumer have failed miserably to do that and failed to use the law as guidance in their decisions - is that an argument which would hold sway when the judge considers my response to any offers ?

Thanks

[R0b]

Re: Goods not as described

You are entitled to reject a confidentiality clause within the settlement terms, I can't see the judge penalising you for that. What you have to look at is the prospects of your case, is it clear cut or could there be some discrepancies which could be argued? Unless it is all clear cut then I would usually go by the case of if you win, then usually expect something along the lines of 75% of what you are claiming. So if you are claiming £700 and they're offering £600 you have to weight up the risk of going to court and winning but getting less. You could counter that offer and meet at £650 full and final settlement and no confidentiality clause.

Is their offer to settle compensation only or inclusive of costs of application fees etc? You always want to argue the amount offered is in addition to court fees and reasonable costs.

I believe there are matters of public interest here - how the organisations set up to protect the consumer have failed miserably to do that and failed to use the law as guidance in their decisions - is that an argument which would hold sway when the judge considers my response to any offers ?

i don't understand that point could you explain in a different way?

[Bananass]

Re: Goods not as described

Thanks again. What they have offered is a complete refund of what I paid for the parts. My claim is for a refund less 'use value' + costs of fitting replacement parts + general damages for loss of peace of mind + application costs. I know courts don't like damages for anxiety etc but the defendant's website does give a "peace of mind" guarantee and I would argue anyway that an authorised main dealer is the 'top of the tree' in the motor trade, you go there to get peace of mind and pay more for it.

Their offer is 36% of my total claim. And no admission of liability.

The bit I haven't put across very well is answered in your first sentence. I complained first to the trade body "government recognised consumer champion", then section 75 to credit card provider, then Financial Ombudsman and believe each decision was seriously flawed and failed the consumer. At the end of this I want to bring it to public attention and so don't want to be shackled by a confidentiality agreement. So getting back to your first sentence - even if they offered my total claim I could still reject it without likely penalty if it was contingent on a confidentiality clause ?

Your advice on what amount to accept sounds very sensible but I have one eye on the 'going public afterwards' factor - a win in court even if I get less money will likely carry more weight there than a high but 'no liability' settlement.

Of course I may still lose but I have gained some hard-hitting evidence that I have yet to serve up to them, I think there is a little further to go yet.

[R0b]

Re: Goods not as described

then section 75 to credit card provider

Well, if you have a reasonable belief of a claim and there could be good grounds for bringing a claim then your credit card provider (providing you used it to pay £100 or more) should refund you the full amount you paid in relation to the car i.e. you pay £100 and the cost of the car is £3k you get the full amount of the car. So maybe you want to get onto them and start harassing them again, maybe even put them on notice that any amount not recovered through the courts you will consider recovering from them on that basis.

You are entitled to reject any terms you like, there is no obligation that you must agree to a confidentiality clause this is just something that mitigates any reputation damage for companies, you are entitled to have your day in court and do not need to agree to it even if you agree to settle the claim.

Their offer seems a little low considering you have had to pay for the cost of having the parts fitted. I don't know how much you are claiming but at the very least you would want a refund on the parts, cost of fitting, application fees and general damages. Your general damages would have to be a reasonable amount and you could argue that because they have dug their heels in and only now since it has gone to court that they have decided to offer even just a refund on the parts and still leave you out of pocket for cost of fitting is unreasonable.

Anyway, I would suggest getting back onto your credit card provider if you paid £100 of more as part of your payment for the car and request a full amount back. If they refuse you can always go to the ombudsman/court action, would be more useful if you were successful in your case as you would then have reasonable grounds to cover any outstanding sum.

[Bananass]

Re: Goods not as described

Food for thought.

For time being I have got back to defendant with suggestions for settlement. See what transpires.